Monday, March 12, 2007

Remembering Powell on the Original Understanding of Original Intent

Posted by
Mary L. Dudziak

There has been much posted on SSRN recently on orginalism. Since not all Legal History Blog readers will be familiar with the classics on this topic, this seems a good time for a reminder of the pathbreaking article that examined what the framers themselves thought about original intent: H. Jefferson Powell, The Original Understanding of Original Intent,98 Harvard Law Review 885 (1984). Here's the abstract:

When interpreting the Constitution, judges and commentators often invoke the "original intent of the framers" in support of their positions. Many claim that such an interpretative strategy is not only currently desireable, but indeed was the expectation of the Constitution's drafters and early interpreters. In this Article, Professor Powell examines the historical validity of the claim that the framers of the Constitution expected the future interpreters to seek the meaning of the document in the framers' intent. He first examines the various cultural traditions that influenced legal interpretations at the time of the Constitution's birth. Turning to the history of the Constitution's framing, ratification, and early interpretation, Professor Powell argues that although early constitutional discourse did contain references to "original intention" and the "intent of the framers," the meaning of such terms was markedly different from their current usage. He concludes that modern resort to the "intent of the framers" can gain no support from the assertion that such was the framer's expectation, for the framers themselves did not believe such an interpretive strategy to be appropriate.